[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Gabrielle Appleby and Lorne Neudorf review Raymond Wacks’ book on The Rule of Law Under Fire? (Hart Publishing, 2021).]
—Gabrielle Appleby, University of New South Wales and Lorne Neudorf, University of Adelaide
In his newly published book, The Rule of Law Under Fire?, Raymond Wacks claims that “recent developments have provoked a genuine anxiety about the wellbeing of the rule of law” (page 3). Before exploring these potential threats to the rule of law, however, Wacks first considers what we mean by the rule of law – an inquiry that takes up more than one-third of the book.
At the outset of his conceptual inquiry, Wacks acknowledges that the rule of law is “bedevilled by legal, ideological and semantic obscurity” (page 35). Over the course of three chapters, Wacks surveys a variety of rule of law theories and approaches. He traces the historical lineage of legal governance to Aristotle and Plato’s conception of ‘good law’ before moving on to discuss Cicero and Aquinas’s views on natural law theory. Wacks revisits the impact of the Magna Carta and the US Bill of Rights. He then reviews and comments on the writings of Dicey, Hayek, Raz, Fuller and Dworkin. Finally, Wacks considers questions of morality, rights and the meaning of law itself.
Wacks ultimately settles on a preferred conception of the rule of law as a “formal conception whose key elements are the restraining of executive power and ensuring that all are subject to the same law”, which is “confined to its procedural and institutional core” (pages 7, 36).
In Chapter 4, Wacks fleshes out his conception of the rule of law. He attempts to eschew rhetoric by instead pursuing conceptual coherence in the virtues and purposes of the rule of law. He quickly discards the embrace of ‘substantive values’ such as human rights. Wacks’ definition of the rule of law “captures the notion of legality and the values associated with mechanisms of control over the exercise of arbitrary authority and sweeping discretion” (page 35). It is based on several assumptions, including that the rule of law has a moral dimension; that artificial boundaries cannot separate the law from the rule of law, nor formal and substantive conceptions of the rule of law; that the rule of law encompasses morally-sound institutions that protect rights; and that the rule of law should not include extraneous ideals (page 36). After discussing these assumptions, Wacks proffers six overlapping democratic principles in connection with his conception of the rule of law: antithesis of arbitrary power; a formal, rational system; equality; impartiality; capable of guiding conduct; and of benefit to the individual (pages 52-53).
Many would say that Wacks is pursuing a thin or formal conception of the rule of law. He argues, however, against such a classification. Instead, Wacks writes that formalistic conceptions are built upon underlying substantive foundations of equality, and individual and moral autonomy. Formal requirements such as procedural fairness are used to advance substantive justice outcomes. The need for generality, publicity, prospectivity, clarity, and stability, promote substantive goals related to the promotion and realisation of liberty. These are all important insights for rule of law scholarship more generally.
Yet Wacks’ discursion into the rule of law thicket is an old, familiar approach. It is, of course, important to define key terms, and Wacks must be given credit for explaining and clearly advancing his conception of the rule of law – something that is not always apparent in rule of law scholarship. But does Wacks succeed in persuading us of the correctness of his notion of the rule of law? Wacks’ book sits among a vast body of academic literature that seeks to convince us of how to properly think about the rule of law. It is difficult to determine which particular conceptual formulation of the rule of law should prevail.
As demonstrated by contributions to the recent The Cambridge Companion to the Rule of Law, the rule of law is inherently contextual. While the idea might be argued to have certain core or universal elements, the time has come to move beyond the intractable contest of theories that are largely divorced from a deeper understanding of how the rule of law is conceived of and operates around the world. It is time to pay attention to, and address, crucial questions relating to the rule of law’s situational and operational contexts among the world’s legal traditions. By developing an appreciation of the various understandings and practices of the rule of law, even when these are considerably different from prevailing Western views, we can begin to move past the philosophical bubble. The result will be a richer, evidence-based theorising of the rule of law in all its dimensions. Through a bottom-up approach, discussions about the meaning of the rule of law can take account of, and engage with, diverse perspectives. Conceptions of the rule of law can be more definitively assessed against their explanatory power in light of new jurisdictionally-specific information. The way forward is through richly detailed and contextualised comparative studies that not only survey formal rules and institutions, but capture local understandings of the rule of law and its dynamics as seen in action.
In Part II, Wacks’ book further continues down the well-trodden path of applying his preferred conception of the rule of law to identify and critique certain problems or challenges. Wacks considers threats posed to the rule of law by a wide assortment of challenges, including institutional threats (the judiciary, administrative discretion, legalism); ideological or political threats (nationalism, populism, critical theory, libertarianism, communitarianism, authoritarianism, parliamentary sovereignty, emergencies); and social/economic threats (capitalism, globalisation, Big Tech, counter-terrorism and corruption). Each challenge is ‘assessed’ against Wacks’ definition of the rule of law, to be either dismissed or considered a threat, on a spectrum of seriousness.
Wacks’ analysis is usefully made straightforward by the clarity of his definition of the rule of law. The threats that Wacks has assembled represent an array of the challenges that are currently experienced in a number of jurisdictions, as well as regions and globally. It is, however, not entirely clear how these challenges were selected, except perhaps for their salience to Wacks’ understanding of the rule of law. If this is the operative criterion, it is surprising that we did not see a further discussion of technology (not just Big Tech) as applied to government, judicial and parliamentary decision-making.
Overall, however, the understanding we gain from the analysis in Part II feels distinctly lacking. And not just because it is at times cursory (e.g., each of the chapters on Legalism, Populism, Libertarianism, Popular Sovereignty, Globalisation, and Counter-Terrorism, are less than three pages long). Our perception of paucity is rather in the lack of contextualisation for understanding the various threats. While at times Wacks does seek to contextualise them – drawing, for instance, on some jurisdiction-specific examples of how threats have manifested in Hungary, Poland, China and Hong Kong – these attempts to contextualise are themselves partly de-contextualised. We learn little about how these threats emerged from within particular socio-politico-legal contexts, the local rule of law discourse, and the institutionalisation and lived experience of the rule of law. In other chapters, threats are entirely de-contextualised. In relation to emergencies, for instance, governmental responses to COVID-19 are not grounded in specific state responses or the historical, political, legal, institutional, economic and social reasons for them. In short, while Wacks identifies and surveys a list of challenges that different jurisdictions and legal orders face in relation to his conception of the rule of law, his book highlights the need for more work to be done to drill into jurisdiction-specific contexts in which these challenges emerge – which also stands to benefit the conceptual inquiry into the nature of the rule of law itself.
It is precisely to this end that we initiated a new book series, The Rule of Law in Context, published by Hart. The first title on the United States (An Unfinished Project of Black Liberation) by Paul Gowder was published this past December. Titles on Brazil and Russia are expected to be published later this year, with a number of other jurisdictions already commissioned.
While The Rule of Law in Context has an explicitly different objective to The Rule of Law Under Fire?, Wacks’ book both frames and underscores the need for it. Rather than providing an “obligatory trawl through the philosophical notions of earlier thinkers” (page 16), titles in the series will provide jurisdictionally-specific, contextualised accounts of local debates (philosophical, political and legal) and an exploration of how the rule of law works in practice.
The Rule of Law in Context asks us to leave our preconceived notions behind – at least for a moment – to learn about the rule of law on the ground. Each title is written by a relevant expert and focuses only on one jurisdiction to provide a rich and detailed case study. As the number of titles grows over time, we envision that the series will provide a valuable base of evidence ripe for comparative study, which can help advance current debates over the meaning of the rule of law. The creation of this library of contextualised accounts of the discourse and manifestation of rule of law, including jurisdictionally-specific responses to many of challenges that Wacks has identified, will provide a currently lacking richness to global and inter-jurisdictional dialogue on the conceptualisation, instantiations and challenges to the rule of law. In our view, a bottom-up, evidence-based approach is a welcome reorientation from the classic approach exemplified by Wacks of theorising first and applying theory to facts second, particularly when the application simply finds fault with jurisdictions that inevitably don’t measure up to the author’s preferred notion of the rule of law. Titles in The Rule of Law in Context will help us reconsider our entrenched normative ideas of the rule of law, and ultimately assist us in better understanding the rule of law on its own terms.
Suggested Citation: Gabrielle Appleby and Lorne Neudorf, Review of “The Rule of Law Under Fire?”(Raymond Wacks), Int’l J. Const. L. Blog, Mar 31, 2022, at: http://www.iconnectblog.com/2022/03/book-review-gabrielle-appleby-and-lorne-neudorf-on-the-rule-of-law-under-fireraymond-wacks/
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